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Alaska Clean Water, Measure 4 (August 2008)

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The Clean Water Act, also known as Measure 4, was an initiated state statute to stem the discharge of toxic materials from large metallic mineral mines in Alaska. It was particularly directed at the Pebble Mine.

After extensive legal wrangling in the wake of a lawsuit filed by opponents, it appeared on the statewide August 26 ballot. On July 2, the Alaska Supreme Court upheld lower court judge Douglas Blankenship, and ordered that the measure appear on the ballot.[1] The measure was defeated by a margin of 57% to 43%.

In 2009, campaign finance violations were alleged against those who supported and those who opposed Measure 4.

Election results

Alaska Clean Water, Measure 4
ResultVotesPercentage
Defeatedd No108,13856.4%
Yes 83,574 43.6%

Results from Anchorage Daily News.[2]

Aftermath

Alaska State Representatives Kyle Johansen (R-Ketchikan) and Charisse Millett (R-Anchorage) introduced HB 36 in 2009 to make it illegal for initiative circulators to be paid on a per-signature basis. It would also make it illegal for initiative circulators to circulate more than one initiative at once.[3] According to reports the two legislators are motivated by the 2008 Alaska Clean Water Act, which was defeated.[4] Current law stipulates that compensation for initiative circulators is limited to $1 per signature. Alaska is the only I&R state that sets a definite limit on how much a person can earn through collecting signatures.

Overview

The initiative was born out of protests over development of a mine near Pebble, Alaska, which has large deposits of copper, gold and molybdenum in the vicinity of Lake Iliamna. The state legislature tried various ways to craft legislation that both sides could live with, such as HB 41, which transfered the project to the Fish and Game Department. None of the bills gained any traction, prompting opponents to file the initiative. Unlike legislation, state initiatives are not allowed to specifically address an issue or location and thus if passed will have a lasting impact on the mining community in Alaska.

The Pebble Beach mine, proposed by the Anglo-American Mining Company, is thought to contain the largest deposit of gold in North America. The mine would sit in the Bristol Bay watershed, home to the world’s most productive salmon fishery.[5] The mine would cover 72 square kilometers, dewater free-flowing salmon streams, and build a dirt dam to hold back 7 billion tons of mine waste.

Pebble Beach is home to one-third of the sockeye salmon in the world. The location is unique in that it feeds the wildlife, Alaska Natives and is one of the largest salmon fisheries. Currently the salmon business of Bristol Bay grosses $400 million annually.[6]

Some of the toxins that the act targets include copper, silver, nickel, chlorine, cyanide, sulfuric acid, compounds of cyanide or sulfuric acid, and other toxic agents found to be harmful.

Support

Salmon spawning in Alaska

Primary sponsors on the initiative were Arthur J. Hackney, Dale E. Wagner, and Mark A. Niver. They are part of the Renewable Resources Coalition which is also sponsoring the Pollution Zone Act and the Fisheries Conservation Act. The coalition was formed in 2005 to fight the development of the Pebble project.

Bob Gillam, one of Alaska's wealthiest individuals, was reportedly been a major donor to the campaign to block Pebble from being built. Gillam, a financial manager and fervent sportfisherman, had a personal stake in blocking development in the region, as owner of a large, private lodge on Lake Clark, 30 miles northeast of the Pebble deposit.

In 2007, Gillam told The Wall Street Journal his cabin has nothing to do with the Pebble fight. He has not said how much he has spent to fund Pebble's opposition.

It was reported in May 2008 that a company owned by Gillam, McKinley Capital Management, has invested millions over the past year in an international mining firm involved in the Pebble development.

Many said they weren't surprised that McKinley would invest in a rising stock and found it merely ironic that Gillam's company was investing in one of Pebble's major backers.

"I applaud him for keeping his personal and professional obligations separated," said Brian Andrews, Alaska deputy revenue commissioner.

"I think it is interesting," said Dick Cattanach, executive director emeritus of the Associated General Contractors of Alaska, and a board member of a pro-Pebble group, Truth about Pebble. "Bob is a smart investor and he wouldn't buy a company for personal reasons. ... He may disagree with Anglo being out there. If (Anglo) is a good investment, he should buy it for (his clients)," Cattanach said.

Anders Gustafson, a fishing guide in the region, said the coalition is acting on behalf of concerned citizens in the area, especially those in the area that run fishing lodges, such as money manager Robert B. Gillam who is actively fighting Pebble project.

"Wild salmon and clean water should be more important to Alaskans than gold and copper. Renewable resources should always trump nonrenewable ones," said Richard Jameson, director of Renewable Resources.[7]

Others that supported stopping Pebble Mine include Nunamta Aulukestai, Alaskan Native Corporation, U.S. Senator Ted Stevens, David Keen of the American Conservative Union, Tiffany & Co., and Fortunoff.[7]

In a debate in Kodiak on August 11, Aurah Landau, the Southeast Alaska coordinator for Alaskans for Clean Water, presented the argument in favor of the initiative. In response to the assertment that the measure wants to shut down mining in Alaska, she said, “We want to support fish and fisheries. We don’t want to stop mining. “It’s just really common sense. (The initiative) simply says that new, large metallurgical mines in Alaska cannot release toxic chemicals into salmon spawning areas that will adversely impact those salmon.”[8]

Opposition

The Resource Development Council for Alaska was opposed to the initiative, saying that it would shut down the $10 billion mining industry in the state. The group organized under the Alaskans Against the Mining Shutdown.

Alaskans Against the Mining Shutdown retained public relations and government affairs consultants to help battle the initiatives. They conducted a print, radio, and television campaign to dissuade voters from supporting the initiative. "It is deceptive and defective this ballot measure," says Cynthia Toohey, campaign chairwoman for AAMS. "I am concerned it will shut down all mining."[9]

Karl Hannesman, a Pogo mine manager and president of the Council of Alaska Producers, asserted that the initiative is too broad and that it will affect both current and future major meta mines on state, federal, university, borough, and native lands, even if they were currently adhering to federal and environmental standards.[10]

Marie Green, president of NANA Regional Corp. (a Native-owned Alaska company which has enterprises in mining as well as other industries), announced her opposition to the initiative. She wrote, "I was among those who originally opposed developing what would become the world’s richest zinc mine 90 miles north of Kotzebue. I was worried about what it would do to our subsistence way of life and our land. But I was also concerned about how we as a people would sustain ourselves, and how we could create an economy that would provide for our children." NANA, as well as other Native-owned companies, have a vested and monitary interest in mining development, an interest that Green said was threatened by the measure: "Now some are challenging our ability to fully develop our mineral potential. Proposition 4, an initiative on the August ballot, would make it difficult, if not impossible, for Alaska to extract its mining wealth. This ill-conceived initiative would rob us – and all Alaska – of the full value of our land. That’s wrong and I strongly urge you to vote no."

Leaders of the Alaska Mental Health Trust Authority were concerned that Proposition 4 could hinder the efforts to receive mineral royalties from the million acres the trust holds on behalf of Alaska's mentilly ill. Says Jeff Jessee, authority CEO of AMHTA, “However you feel about Pebble, that’s one thing,” Jessee said. “But this is about a lot more than Pebble.” Harry Noah, trust land office director and former commissioner of the Department of Natural Resources, agrees with Jessee: “We know there is a ballot measure that wants to change the regulatory environment. The trouble is, the initiative is so poorly written, it’s hard to understand exactly what that means. Therein lies the problem.”[11]

Gov. Palin announces opposition

Days before voters went to the polls, Governor Sarah Palin publicly stated her opposition to Proposition 4.
"Let me take my governor's hat off just for a minute here and tell you, personally, Prop. 4, I vote no on that."
While polls before her statement showed Proposition 4 ahead by a small percentage, in the end almost 60% of voters went against it. Not only did critics call Gov. Palin's statements highly unethical, but a legal complaint was filed against the state for improperly taking sides on the measure, which is illegal. The Alaska Public Offices Commission ordered the content to be taken off the state website, but cleared Palin, saying she made it clear it was a personal opinion.[12]

Natural Resources Department website

A government website for the Natural Resources Department was found by the Alaska Public Offices Commission to have improperly featured text about the issue that favored a "no" vote.[13]

What miners said about the initiative

Mining Trade Groups worked to stop the initiative by communicating with every trade association, chamber of commerce and government official willing to listen. The initiative allowed for a grandfather clause, excluding existing mines from the new regulations, but mine operators say they are constantly renewing permits and seeking new permits.[14][15]

The Alaska Miner Association member said the measure is drastic and "[They] could effectively stop mining. It's brutal."

Borough Mayor John Williams' officially pledged to fight the initiative.[16]

The Council of Alaska Producers, a mining industry group, filed court complaints against the initiative. The group was the first to report its donors to the APCO on March 13, 2008.[17]

Ballot status challenged in court

The unsuccessful lawsuit to keep Measure 4 from the ballot was filed by the Alaska Federation of Natives and the Association of ANCSA Regional Corporation Presidents, who plan to build mines in the future. Renewable Resources Coalition has vowed to fight back, and both sides plan to appeal until the decision reaches the Alaska Supreme Court. The miners are arguing that, if enacted, the Clean Water Act will cost the state $10 billion in deposits from Pebble Beach alone and possibly halt future projects. Renewable Resources Coalition argues that just as much money could be made for the state from salmon sales.[18]

Ruling

A Superior Court judge in Fairbanks ruled a clean-water ballot initiative is unconstitutional because it usurped the Legislature's duty of allocating state resources. The case was expected to be appealed to the Alaska Supreme Court.

Campaign tactics and ads

As the August 26 approached, supporters and opponents of Measure 4 had raised at least $3.6 million, with the mining industry outraising and outspending supporters of Measure 4. In television advertisements, the pro-mining group said the ballot initiative goes too far and could prevent existing mines from renewing their permits.

On its website, Alaskans Against the Mining Shutdown called the measure "deceptive and defective," and said passing the issue could "result in the loss of thousands of mining and industry-related jobs across Alaska; undermine economic opportunity in the rural areas of our state; and seriously impact operations at existing mines, restrict development of new facilities at existing mines and prevent any future mines.”

However, the supporters said there will be no impact on existing mines. Art Hackney, the political consultant and primary sponsor of the Clean Water Initiative explained, “It’s a political tool wielded purposely to confuse. If you want them to vote ‘no,’ you get them to scratch their heads.” Further, as Bruce Switzer, Senior Technical Advisor for the Alaskans for Clean Water, says, "“This initiative was specifically designed to focus on the Pebble Mine ... The measure clearly states that it refers to new, large-scale, metallic mining operations.” The measure also states that the regulatory standards do “not apply to existing large-scale, metallic mineral mining operations…or to future operations of existing facilities at those sites.”

Campaign finance controversies

Supporters violated laws

On March 20, 2009, the Pebble Partnership and the Resource Development Council filed a complaint with the Alaska Public Office Commission (APOC) claiming that Bob Gillam, an Anchorage financial manager, broke the law in hiding his contributions from voters. Gillam and three associated advocacy groups denied the claims.[19]

According to Tom Amodio, attorney for the Council of Alaska Producers and Alaskans Against the Mining Shutdown: "We reported everything when we thought it was required to be reported. They purposely chose not to report things, to make it appear that Mr. Gillam was spending substantially less than he did. It's a very different type of violation, ours is less serious."[20]

In early June, the APOC concluded that Art Hackney, a consultant, and three others violated campaign finance laws. In late September 2009, the commission reached a $20,000 settlement over charges against a pro-initiative group, the Washington, D.C.-based Americans for Job Security and by early October 2009 will have closed settlement negotiations with Gillam and other supporters. In settlement documents that are being signed in early October 2009, the groups will pay a total of $35,000, according to Art Hackney, one of the sponsors of Measure 4.[21]

On October 15, 2009, the APOC rejected a settlement that would have paid $35,000for the campaign law violations. During a hearing held on that day, the attorney for the Pebble Partnership criticized the settlement, calling it a “slap on the wrist” and would not be a good message for future violators.[22]

Timeline of controversy:

  • Spring 2008: Robert Kaplan is hired by the group as a political fundraising consultant
  • September 2008: After initiative failed, Kaplan was notified by email that his contract was canceled and his commissions would go unpaid. Kaplan then forwards those emails to authorities
  • June 4, 2009: APOC staff issues 42 page report listing 18 violations of campaign finance laws by the group.

Specifically, the APOC report said:

  • 89% of the $2.9 million that Alaskans for Clean Water spent came directly or indirectly from Bob Gillam
  • 91% of that $2.9 million was controlled by Hackney or media consultant Michael Dubke.
  • Dubke was the sole employee of Americans for Job Security for a decade. Americans for Job Security is a non-profit based in Alexandria, Virginia whose purpose is to allow individuals and corporations to financially support various causes without having to disclose that financial support.
  • Bob Gillam gave $855,000 directly to Alaskans for Clean for Water, which is more than he previously disclosed.
  • Gillam ran $1.6 million through Americans for Job Security, and $150,000 through the Renewable Resources Coalition which is based in Anchorage.
  • The APOC report asserts that Gillam recruited Hackney, Renewable Resources Coalition President Richard Jameson, and Dubke, to support the initiative.

Hackney's complaint

Days after the APOC verdict against Measure 4's supporters was announced , Hackney filed a complaint with the APOC asking it to investigate claims that those who opposed Measure 4 violated the state's campaign finance laws. Hackney's complaint says:

  • Alaskans Against the Mining Shutdown, the Council of Alaska Producers, and NANA "conspired to hide" the true amount they spent in opposition to ballot measure 4
  • More than $3.5 million in expenditures and over $1.3 million in contributions were concealed until after the election.
  • The Council of Alaska Producers failed to properly report over $6.3 million in contributions to Alaskans Against the Mining Shutdown
  • The Council of Alaska Producers failed to properly report nearly $500,000 in expenditures
  • NANA Regional Corp. failed to properly report over $400,000 in expenditures.
  • The three groups "clearly collaborated in a scheme by which they concealed large sums of contributions and expenditures until after the election had been decided. This scheme was based on the premise of falsely claiming that obligations to pay vast amounts of campaign expenses were not incurred until after the election. This scheme is a clear violation of Alaska's campaign finance laws and regulations."

Some charges dismissed

During the week of November 20, 2009, the APOC dropped a portion of the charges against Hackney, Gillam and others of the anti-Pebble groups. Among the charges dropped were accusations of the group failing to register as a ballot group during the campaigning for the ballot measure. However, Gillam and other groups are still accused of hiding source funds. Gillam is still accused of allegedly hiding that donated $2 million in contributions. The APOC ruled that the charges dropped were not "legally valid." Although only some charges were dropped, that meant all charges were removed against Hackney, Virginia consultant Michael Dubke and Pebble opponent Richard Jameson.[23]

See also

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External links

References

  1. Forbes.com: "Clean-water initiative to appear on Alaska ballot," July 3, 2008
  2. Anchorage Daily News Primary Election Results
  3. Alaska anti-initiative bill, January 19, 2009
  4. Anchorage Press,"Brother can you spare an autograph?," January 6, 2010
  5. News Miner, "Mining supporters rail against initiative," April 3, 2008
  6. The Guardian: "Spawning protest," April 14, 2008
  7. 7.0 7.1 Daily News-Miner: "Clean water initiatives aimed at Pebble could reach far beyond," Jan. 2, 2008
  8. Kodiak Daily Mirror: "Mining measure opponents clash at Kodiak debate," Aug 12, 2008
  9. msnbc.com: "It's salmon vs. gold mining in Alaska vote," Aug 14, 2008
  10. Mineweb: "Citing potential impacts on current mines, Alaska miners launch media campaign against anti-Pebble project initiative," April 4, 2008
  11. Newsminer.com: "Ballot Measure 4 could impact mental health resources," Aug 7, 2008
  12. Grist.org: "Palin comparison: Alaskan greens say McCain's VP pick has anti-environmental record," Aug 31, 2008
  13. New York Times, "Palin's Hand Seen in Battle Over Mine," October 21, 2008
  14. Newsminer: "Mining supporters rail against initiative," April 3, 2008
  15. KTUU News: "Legislature gives governor authority to weigh in on initiative," April 10, 2008
  16. Peninsula Clarion: "Williams defends initiative stance," Feb. 10, 2008
  17. Alaska Daily News: "Approval of Clean Water initiatives means new disclosure rules," March 12, 2008
  18. NewsMiner.com: "Ballot measures go to court, could halt Pebble Mine," Feb. 11, 2008
  19. Anchorage Daily News, "Pro-Pebble forces accuse foes of hiding financial source," March 20th, 2009
  20. Anchorage Daily News, "Pebble players may face APOC penalties for proposition fight," October 1, 2009
  21. Newsminer.com, "Both sides of Alaska mining measure face penalties," October 1, 2009
  22. Anchorage Daily News, "APOC rejects settlement of alleged campaign law violations," October 15, 2009
  23. Anchorage Daily News, "APOC drops some charges in clean-water ballot fight," November 20, 2009

Additional information about ballot litigation in 2008